- - Monday, May 6, 2019

ANALYSIS/OPINION:

Rep. Jerry Nadler, the chairman of the House Judiciary Committee, wants the attorney general, William Barr, to break the law. That’s a curious, if not bizarre wish from a distinguished member of Congress. But Mr. Nadler and the Democrats, who are in a frenzy to salvage something from the collusion investigation they expected to deliver Donald Trump’s head on a pike, have demanded the attorney general hand over an unredacted copy of the Mueller Report. That’s against the law.

Mr. Barr pointed out to the chairman of the Judiciary committee that to comply with the demand would violate the Federal Rules of Criminal Procedure, which govern how criminal cases are conducted in the courts. The attorney general and the Justice Department argue that they can’t turn over the full report to Congress because it includes information collected by grand juries, which is prohibited by law and long-held custom and practice. Grand jury testimony is secret. The Justice Department further argues that raw evidence collected in a criminal investigation must be protected from prying eyes, even congressional prying eyes. If Mr. Nadler and his colleagues think that’s not a good idea, they should work to change the law.

Protecting the secrecy of grand jury deliberations has been rarely questioned. Some of what a grand jury hears is little more than incriminating gossip, and the rules are meant to reassure witnesses and to protect the innocent. The rules grant wide privacy protections to grand jury proceedings. This is relevant because every page of the 400 pages of the Mueller Report is marked, “May Contain Material Protected Under Fed. R Crim. P. 6(e),” the law which protects secret grand jury proceedings, a Justice Department spokesman says, “and therefore could not be publicly released.”

To turn over the unredacted report, the attorney general argues, would violate these rules. The courts would appear to agree. In a decision last month, a U.S. court of appeals in Washington ruled that grand jury proceedings may be turned over to “prosecutors, defendants and other grand juries.” Nothing said about Congress.

If the House Judiciary Committee follows through on Mr. Nadler’s threat to cite the attorney general for contempt when it takes a vote on Wednesday, Mr. Barr would not be the first recent attorney general to be so cited. Eric Holder, the U.S. attorney general in Barack Obama’s first term, was cited for declining to release certain documents in a Justice Department scheme to sell weapons to Mexican drug dealers and then track the movement of the guns. One of those weapons was later used to murder an American border patrol agent.



Unlike Mr. Barr, Mr. Holder did not have federal law at his back. He was merely trying to expand the information he could keep secret under executive privilege. The House, then controlled by Republicans, voted 255 to 67 to cite Mr. Holder for contempt.

The Democrats in Congress have good reason to fear Mr. Barr. The attorney general has said that his office will look into the surveillance conducted by Democrats on Donald Trump’s 2016 presidential campaign. “I think spying on a political campaign is a big deal,” Mr. Barr said last month. “The question is whether it was adequately predicated. And I’m not suggesting that it wasn’t adequately predicated. But I need to explore that. I feel I have an obligation to make sure that government power is not abused. I think that is one of the principal roles of the attorney general.”

Who can disagree with that? Well, certain Democrats do. For suggesting that an impartial investigation might be in order, Speaker of the House Nancy Pelosi said Mr. Barr was “going off the rails.” Now others in her party are trying to intimidate Mr. Barr to break the law protecting the work of grand juries. If he breaks, which we do not expect, he can look forward to a Democratic reward of tar and feathers.

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